How to Use Technology for Effective Cross-Examination

The following is a guest blog post by Jeff Bennion, a solo practitioner in San Diego who specializes in personal injury and consulting on e-discovery and litigation technology.

A good cross-examination should come off as scripted. California Evidence Code §767(a)(2) allows for leading questions on cross-examination, and a good trial attorney should lead the witness through the narrative using only questions that he or she knows the answer to. But things don’t always go according to plan. When a witness gives an answer that you did not expect or that is contrary to what you learned in discovery, you need to have a plan for showing your impeachment evidence to the jury.

Your cross-examination outline should contain (1) the questions you plan to ask, (2) the answer you expect the witness to give, and (3) where you can find the evidence to back up that answer. Being prepared to present impeachment evidence on cross will have three effects on your case:

You’ll win the jury’s trust. Showing the jury that you know the evidence better than the witness (and maybe the attorney who prepared the witness) will give the jury the impression that you have a solid grasp of the facts and that the arguments you make are based on facts.

You’ll show the jury and the court that you’re prepared. Being able to quickly display your impeachment evidence will show the jury and the court that you not only know your evidence, but you’ve put in the time to organize your case in a way that won’t waste their time; there’s no better way to get the court and/or jury to warm up to you than by showing your respect for their time.

You’ll make the witness afraid to lie. Repeatedly beating back a witness with impeachment evidence will make that witness think twice before making false statements.

How you present your impeachment can be crucial to achieving these effects. Spending even 30 seconds flipping through an exhibit binder can detract from the pace and drama of your cross-examination trap. Achieve better organization and time-saving at trial by presenting your evidence electronically, e.g., by

PowerPoint. PowerPoint is easy to learn and most law offices already own a copy of PowerPoint as part of their Microsoft Office suite. It’s a good way to present scripted presentations when you know the exact order of the evidence you’re going to present. PowerPoint also has tools to make it easy to annotate documents. Although it’s easy to use, PowerPoint takes some forethought to use for cross-examination. It helps to have a cheat sheet correlating the exhibit numbers to the slide numbers in your presentation so that you can go to that exhibit quickly. Additionally, the tools for zooming in on documents on the fly are weak in PowerPoint, so most attorneys import regular versions of exhibits as well as a “zoomed” version of the portions that the attorney wants to emphasize.

Adobe. Adobe Reader is another tool with an easy learning curve that most attorneys already have on their computers. To make using Adobe even more effective during cross, set your laptop computer to extended desktop mode and keep a window open with all of your scanned exhibits. Then click to open your exhibits and drag the window over to the extended screen shown by your projector. Use the marquee zoom tool to draw a box around the portions of your document that you want to expand.

Trial Presentation Software. Trial presentation software can cost as much as $800 and has a steep learning curve; however, it has the most flexibility for presenting evidence on cross-examination. Exhibits can be pulled up instantly by typing in their exhibit number. You also have options for zooming and annotating documents on the fly. Trial presentation software allows you to play excerpts of video depositions with the text scrolling under the video like subtitles, and if the deponent refers to an exhibit, you can split the screen and show the video clip of the deponent on one side and the exhibit on the other.

The use of technology in trial is becoming more prevalent. In fact, more and more California courtrooms are pre-wired for electronic presentations. Although incorporating technology can be more complicated than using traditional methods of evidence presentation, such as blow-up boards and document cameras, the effect on the modern jury can be dramatic. During cross-examination, in which timing and organization are crucial to keeping an adverse witness in line, technology is often the best way to present evidence.

9 thoughts on “How to Use Technology for Effective Cross-Examination”

Great piece Ted. One should combine this with learning how to read micro expressions. Dr. Paul Ekman has produced solid material on this. Detecting micro expressions can give you insight as to how you can navigate your cross examination to uncover more and or discredit a witness. Detecting a micro expression of fear as you ask a question may indicate the witness is hiding something and senses you are close to it. An asymmetrical shoulder shrug combined with pressing the lips before the witness responds are considered “manipulators”, the response is more likely to be a lie, and you can use tech to conduct further research and decode the deception.

Follow Us

Other Links

Disclaimer

This blog is not intended to reflect the position of the State Bar of California or of the University of California. The content is provided with the understanding that CEB does not render any legal, accounting, or other professional service. Attorneys using CEBblog™ should research original sources of authority. Any CEB publication cited is not intended to describe the standard of care for attorneys in any community, but rather to be of assistance to attorneys in providing high quality service to their clients and in protecting their own interests. CEBblog™ is hosted by WordPress and is governed by WordPress’ Privacy Policy. Any information transmitted to CEB from or about CEBblog™ is governed by CEB’s Privacy Policy.